The sight of Eric and Ryan Jensen, owners of the Colorado produce farm where contaminated conditions led to a Listeria outbreak that became the deadliest in the U.S. in more than 25 years, standing in a Denver federal court in shackles probably struck fear in the hearts of many a produce farmer.
The latest developments in the case now has the two owners filing a lawsuit blaming a food-safety auditor that didn’t pick up safety problems and gave the farm a “superior” rating a month before the outbreak. The Jensens are expected to plead guilty on October 22 under a deal with federal prosecutors.
“The Jensens have already lost their business, their reputations have been held up in front of the world, and they are facing the possibility of federal prison and $1.5 million in fines,” noted David Acheson, MD, founder and CEO of The Acheson Group and the FDA’s former associate commissioner for foods, in a blog suggesting that this may, indeed, herald a new era of federal prosecutions for food safety.
The Jensen brothers face six counts of adulteration of a food and aiding and abetting, charges that carry with them the possibility of up to a year in federal prison and a fine of up to $250,000—per count.
Christopher Tritt, a co-founder of Taulbee & Tritt, a subsidiary of Tampa-based Lykes Insurance focused on food contamination and recall, calls that prospect “downright frightening.”
Although Jensen Farms may not have been a best-in-class operator, Tritt says, they weren’t in the same class as the Peanut Corp. of America, whose executives were indicted in February on fraud and conspiracy charges in a 2009 Salmonella outbreak that killed nine people and sickened some 700. “PCA’s actions were egregious and the iron fist there is probably a pretty good thing. But speaking from 30,000 feet, all the indications are that Jensen Farms wasn’t that kind of operation. This is a frightening precedent.”
Glenn Pogust, a product liability lawyer with Kaye Scholer, suggests that although the idea of criminal charges may seem more troubling to producers, civil liability in these cases may yield even greater penalties. “I suspect that, as we go forward, there may even be the imposition of the concept of strict liability. It won’t matter whether the owners of the farm knew there was a problem, but the controlling factor would be that there was contamination at the farm, and the person in the best place to bear that risk is the producer. Even short of criminal prosecution, it is clear that the FDA is going to want to be more aggressive in imposing fines and citing unsafe practices. And civil judgments can far exceed criminal fines by many factors.”
According to a recent Food Quality & Safety online poll, when asked if readers agree with criminal charges brought against Jensen Farms, 61 percent answered “yes,” 14 percent answered “no,” and 23 percent had mixed feelings.